216 



principle that like all power it ought to be a sovereignty of right " {Cours de Droit Nal- 

 urel, ? 110). 



(/ ) Or rather, we should say, that the r-^al sovereign consists of the managers who con- 

 trol the assembly. For nowhere is the saying truer that there is a power behind the throne 

 greater than the throne than in the case of large assemblies, which experience has 

 demonstrated are incapable of rational and consistent action, and are always controlled 

 either by committees or by party managers. This notion, as will be seen, is in fact em- 

 bodied in one of the numerous doctrines of sovereignty, of which the present day is 

 extremely prolific" {ivfia, p. 2C0). 



{g) A striking illustration of the danger of using the term sovereignty, even thus quali- 

 fied, is presented by Mr. Von Hoist, in his Constitutional History of the United States, or 

 rather the first volume of it. The conclusion there reached (I say " conclusion," because 

 the history seems to have been written for the purpose of establishing the proposition) 

 is that " Sovereignty is One and Indivissible— the Sovereignty of Law." 



This is apparently an innocent, though certainly not a self-consistent propo-^ition. For 

 if the law be sovereign, it must follow that there are as many different sovereigns as there 

 are laws ; and hence that in every State of the United States there must be two sov- 

 ereigns, for in each there are two different and entirely independent systems of law. But, 

 in fact, the doctrine of the sovereignty of the law, though formally asserted by him, is 

 not the doctrine he has in his mind. His real doctrine— to the establishment of which 

 all his facts and arguments are marshaled— is that sovereignty is indivisible, and there- 

 fore vested exclusively in the Federal Government, and not to any extent in the States. 

 In other words, the obvious, and I may say avowed purpose of his work is to teach us— 

 who, for over a hundred years, under the uniform decisions of the courts, and the con- 

 curring opinion of constituiional lawyers of all political faiths — have believed ourselves 

 to be living under a divided sovereignty— that we have been living under an impossible 

 delusion, thus presenting an instractive example of how difficult it is for a man to escape 

 the influence of his early environment, and the consequent almost imnossibility for a 

 European to comprehend the simple and rational doctrine of political power, unre- 

 servedly accepted by the founders of our Constitution, uniformly affirmed by our courts 

 and our statesmen, and rendered familiar to us by long use ; which is, that the sovereign 

 or supreme powers of government may be, and in fact are, distributed between the 

 General Government and the State governments, and in each among the several depart- 

 ments of the Government. (On this point see further infra, pp. 229, et seq.) 



" In viewof the danger of the common notion of sovereignty and the necessity of sub- 

 mitting it to a superior principle, several eminent publicists (Royer-Collard, Guizot and 

 others) have sought to transfer the sovereignty itself into an ideal sphere and to place it 

 in reason, truth or justice. But sovereignty expresses a mode of action of the will, and, 

 hence, pertains always to living persons, individual or collective ; but it is of high impor- 

 tance to comprehend that it ought to be exercised like all will, according to the princi- 

 ples of reason and of justice." — Ahren's Cours de Droit Natarel, § 110, " De la Souveri- 

 net6." 



The same observation is made by Mr. Bliss : The conception " of Guizot, wliich 

 enthrones justice, reason, as the only sovereign, commands our reverence, yet in fact it 

 is but a denial that sovereignty can exist among men ; it destroys the word by giv- 

 ing it to an obligation ; it is not a figment of the imagination like the social contract ; it 

 is a metaphor— a sublime one, but of little use in our present inquiries." "How 

 sublime," he adds, "is Guizot's metaphor, and how welcome the word as he uses it. 

 Justice, reason, law, as embi>dyiug its dictates, is alone sovereign : let the notion of any 

 other sovereign be trampled under foot" (Bliss on Soi'ereignty, pp. 172-175). 



Thus amended the doctrine is but a reexpression of the opinion of Aristotle. {Politics, 

 b. 3, c. Ifi): "Moreover, he who bids the law be supreme makes God supreme ; but he 

 who intrusts man with supreme power gives it to a wild beast, for such his appetites 

 often make him." 



{h) It is well explained by Hobbes, that in matters of experience where we fail to judge 

 correctly, it is simply an "error," or erroneous opinion. But when we make a mistake 



